The Department of Health and Human Services (HHS) Office for Civil Rights (OCR) and the Centers for Medicare & Medicaid Services (CMS) recently issued a final rule under Section 1557 of the Affordable Care Act (ACA) that strengthens anti-discrimination protections in health programs and activities. Section 1557 prohibits federally funded health programs and services from discriminating on the basis of race, color, national origin, age, disability, or sex. The changes laid out in the landmark rule restore critical protections that were removed by the Trump administration, while also expanding and updating protections for marginalized communities.
Importantly, for the first time, Medicare Part B payments are considered a form of federal financial assistance for purposes of triggering civil rights laws enforced by HHS. This means that health care providers and suppliers receiving Part B funds are prohibited from discriminating on the basis of protected characteristics such as race, sex, and disability. The rule also reinstates application of Section 1557 to all HHS-administered programs and activities. This will protect vastly more people from discrimination across HHS’s broad range of health programs, including Medicare beneficiaries. The Center for Medicare Advocacy strongly supports these expansions of the scope of Section 1557’s application.
The rule also applies the nondiscrimination principles of Section 1557 to artificial intelligence decision-making tools, which are often utilized by private Medicare Advantage Plans. The Center is reviewing the final rule and applauds strengthening non-discrimination protections.
Detailed analysis from our friends at NHeLP is available here: Regarding artificial intelligence and plan decisions: 1557 Final Rule Protects Against Bias in Health Care Algorithms – National Health Law Program
HHS also recently finalized a rule under Section 504 of the Rehabilitation Act (Section 504) that prohibits discrimination on the basis of disability in programs and activities that receive funding from HHS, such as private Medicare Advantage and Part D plans. The rulemaking marks the first update to the Section 504 regulations in 50 years and reflects decades of advocacy by the disability rights community.
As HHS said in a statement, the rule,
“[e]nsures that medical treatment decisions are not based on negative biases or stereotypes about individuals with disabilities, judgments that an individual with a disability will be a burden on others, or dehumanizing beliefs that the life of an individual with a disability has less value than the life of a person without a disability.”
The final rule also makes requirements consistent with the American with Disabilities Act to improve and simplify compliance.
The Center for Medicare Advocacy is reviewing the final Section 504 rule as well and applauds its strengthening of disability protections.
May 9, 2024 – K. Kertesz